A DuPage County city was justified in referring a health
insurance provision to an arbitrator during difficult negotiations with its
firefighters union, according to a ruling recently affirmed by a state
appellate panel.

The Illinois Second District Appellate Court, which convenes
in Elgin, issued a June 22 judgment on a petition for administrative review of
an Illinois Labor Relations Board decision. Justice Mary Seminara Schostok
wrote the opinion; Justices Robert D. McLaren and Robert B. Spence concurred.

In 2012, negotiations failed between west suburban Wheaton
and Firefighters Local 3706. The union initiated arbitration proceedings, during
which the city sought to add a contract provision allowing it to unilaterally change
health insurance benefits during the term of the contract. That prompted the
union to file an unfair labor charge. The Labor Relations Board found the
submission of the proposal did not constitute an act of bad faith; the union
appealed.

In the interim, the city and union settled the larger dispute,
and executed the contract that was art of the arbitration process, followed by a
successor agreement running through April 30, 2018. Neither deal included the city-written
language that spurred the labor complaint. The city argues this means the court
should dismiss the appeal. However, Schostok wrote, the U.S. Supreme Court and
labor boards have “consistently rejected” such an argument.

As the appellate justices viewed the dispute, the question
to answer is if “a party’s mere submission of a new proposal for the first time
in front of an interest arbitrator can constitute an act of bargaining in bad
faith.” Looking at a 1998 Labor Relations Board ruling on a case involving the
village of Bensenville, Schostok explained state law “does not, on its face,
preclude the use of interest arbitration to resolve collective bargaining
disputes over permissive subjects of bargaining.”

Simply put, if the second party in the dispute objects to
the arbitrator considering the issue the first party submits, the arbitrator is
supposed to respect the objection and ignore the submission.

The union’s appeal also invoked past Labor Board rulings on
cases involving firefighter unions in Midlothian and Wheeling. However,
Schostok noted, “in those cases the parties had already been negotiating over
the controversial issue when one of the parties submitted it to an interest
arbitrator.” Once one party indicated it would not cede ground on a matter, “it
was indeed bad faith for the other party to continue to press the issue and
submit it to an interest arbitrator anyway.”

Further, the union also tried to suggest allowing the city’s
side to win would establish an inconsistency between how grievances are handled
under two different sections of state law. But since the justices rejected the
union’s underlying premise, its argument of inconsistency also failed.

Neither did the justices accept the argument the labor
board’s remedy for the contract proposal was insufficient: “The Union ignores
the fact that the Board’s remedy - a party’s ability to prevent an arbitrator
from considering an issue by objecting under … the Board’s rules - worked in
this case.”

Finally, the city asked the appellate panel to affirm the
labor board’s decision on the basis the city’s proposal involved a mandatory bargaining
subject. But the justices said the facts of that case did not require them to
address the issue. Schostok cited the 2001 Illinois Third Appellate Court
ruling on McNeil v. Carter, which
held the “reviewing court need not address the viability of the alternate
grounds upon which the trial court might have relied in dismissing the
complaint.”